Judge Goes Where Governor and Legislature Fear To Tread

Justice Lucindo Suarez took a bold step February 5 when he judicially imposed a rate of $90 an hour for assigned counsel. The decision in New York County Lawyers' Assoc. v. The State of New York, 102987/00, followed a 16-day bench trial held last summer at which 41 witnesses testified. The judge's lengthy opinion admonished Governor George Pataki and New York's state legislature for failing to raise assigned counsel rates since their last change in 1986. 

In recent years, the rates for counsel assigned to represent family court litigants ($40 per hour for in-court work and $25 per hour for out-of-court work, with a per-case cap of $1200) have offered little incentive for attorneys to take on such employment. For example, the court noted that at the time of trial, the administrator of the First Department law guardian program had stated that there were approximately 65 active attorneys available but that she would need 325 panel attorneys to adequately staff the assigned counsel needs of the intake parts in Family Courts in the Bronx and New York Counties.

These insufficient numbers, Justice Suarez noted, resulted in denial of counsel to Family Court litigants who, because of their lack of knowledge of the system, often fail to provide the court with adequate information from which to make decisions. 'Immediate court intervention is required in many of these cases,' the court stated, 'including abuse and neglect or child protective cases that concern the removal of a child from the home, juvenile delinquency cases where juveniles are held in custody and domestic violence cases where victims' personal safety is at risk.'

Justice Suarez found that 'There is uncontroverted evidence of material and actual constitutional injury to litigants in family and criminal court proceedings in New York City ' Moreover, [the New York County Lawyers' Association] proved that these constitutional injuries, and this threat of irreparable constitutional harm to these litigants, are the direct result of the current statutory rates of compensation and caps ' The proof is sufficient to warrant permanent injunctive relief under New York law.' 

The court's intervention into what Justice Suarez characterized as an area best left to the executive and legislative branches was necessary, the opinion noted, because after '17 years of legislative inaction and proof of real and immediate danger of irreparable constitutional harm, this court can no longer wait for the legislative branch to protect the fundamentall interests of children and indigent litigants.' His injunction raising assigned counsel rates in New York City will remain in effect until the legislature acts to address the problem. It applies both to New York City, which provides counsel to indigent criminal defendants and to adults in Family Court, and to New York State, which pays for representation of children in Family Court.

Of course, this permanent injunction could be stayed should the state or city file notices of appeal. A preliminary injunction issued in a similar action last May never went into effect because an appeal was filed. (Oral argument on that appeal was heard Oct. 24, but a decision has not yet been issued.)

Justice Lucindo Suarez took a bold step February 5 when he judicially imposed a rate of $90 an hour for assigned counsel. The decision in New York County Lawyers' Assoc. v. The State of New York, 102987/00, followed a 16-day bench trial held last summer at which 41 witnesses testified. The judge's lengthy opinion admonished Governor George Pataki and New York's state legislature for failing to raise assigned counsel rates since their last change in 1986. 

In recent years, the rates for counsel assigned to represent family court litigants ($40 per hour for in-court work and $25 per hour for out-of-court work, with a per-case cap of $1200) have offered little incentive for attorneys to take on such employment. For example, the court noted that at the time of trial, the administrator of the First Department law guardian program had stated that there were approximately 65 active attorneys available but that she would need 325 panel attorneys to adequately staff the assigned counsel needs of the intake parts in Family Courts in the Bronx and New York Counties.

These insufficient numbers, Justice Suarez noted, resulted in denial of counsel to Family Court litigants who, because of their lack of knowledge of the system, often fail to provide the court with adequate information from which to make decisions. 'Immediate court intervention is required in many of these cases,' the court stated, 'including abuse and neglect or child protective cases that concern the removal of a child from the home, juvenile delinquency cases where juveniles are held in custody and domestic violence cases where victims' personal safety is at risk.'

Justice Suarez found that 'There is uncontroverted evidence of material and actual constitutional injury to litigants in family and criminal court proceedings in New York City ' Moreover, [the New York County Lawyers' Association] proved that these constitutional injuries, and this threat of irreparable constitutional harm to these litigants, are the direct result of the current statutory rates of compensation and caps ' The proof is sufficient to warrant permanent injunctive relief under New York law.' 

The court's intervention into what Justice Suarez characterized as an area best left to the executive and legislative branches was necessary, the opinion noted, because after '17 years of legislative inaction and proof of real and immediate danger of irreparable constitutional harm, this court can no longer wait for the legislative branch to protect the fundamentall interests of children and indigent litigants.' His injunction raising assigned counsel rates in New York City will remain in effect until the legislature acts to address the problem. It applies both to New York City, which provides counsel to indigent criminal defendants and to adults in Family Court, and to New York State, which pays for representation of children in Family Court.

Of course, this permanent injunction could be stayed should the state or city file notices of appeal. A preliminary injunction issued in a similar action last May never went into effect because an appeal was filed. (Oral argument on that appeal was heard Oct. 24, but a decision has not yet been issued.)